Seymour v. Commonwealth

• Decision Date: 15 June 1922
• Citation: 112 S.E. 806
• Parties: SEYMOUR et al. v. COMMONWEALTH.
• Court: Virginia Supreme Court

112 S.E. 806

SEYMOUR et al.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 15, 1922.

providing that corporation courts have concurrent jurisdiction with circuit courts over offenses, etc., had jurisdiction.

Error to Corporation Court of Norfolk. W. E. Seymour and others were convicted of murder, and they bring error. Affirmed.

J. L. Broudy and Tazewell Taylor, both of Norfolk, for plaintiffs in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

PRENTIS, J. The plaintiffs in error, who were jointly tried, have been found guilty of murder in the first degree and sentenced to 20 years' confinement in the penitentiary. They, together with one J. G. Moore, who was the chief witness for the commonwealth, were jointly indicted for the murder of one Hadie Sasaki, a member of the crew of a merchant vessel owned by a Japanese corporation, while the vessel was in the Elizabeth river a few hundred yards from the Lambert's Point pier.

The evidence upon which the commonwealth relies to justify this conviction may be thus summarized: The accused were jointly engaged in illicit traffic in ardent spirits. Their customary method of securing much, if not all, of the liquor which they sold was to board foreign vessels while lying in the harbor, and, acting in concert, to negotiate for the purchase of liquor there held by members of the crew for sale. After making the bargain and having the liquor produced for delivery, they would display pistols and badges, impersonate officers, and pretend to arrest the vendors of the liquor and sometimes members of their own party also, charging them with the illegal sale and purchase of intoxicating liquor, in violation of the prohibition law (Laws 1918, c. 388). They would then take possession of such liquor as contraband and sell it as their own.

On the night of December 24, 1920, with a similar purpose in view, they boarded the Japanese vessel Kaisbo Maru, having learned that there was whisky on board that ship for sale. There were six in the party, the five who were indicted and one Roy Tinder, who was taken on the launch which went out to the vessel, at the last moment, because Sterling, who was expected, failed to appear at the appointed time. They took with them three pairs of handcuffs, some flash lights, a pad of 50 to 75 blank search warrants, six badges, three being the badges of the United States internal revenue officers, one city of Norfolk policeman's badge, one Norfolk county special policeman's badge, and another described as "some kind of secret service" badge. Five of them had pistols loaded, and one, Graham, also wore a belt full of cartridges. Two of them boarded the ship and entered into negotiations with members of the crew, showing their money and pursuing their usual method. When these negotiations were concluded and a large quantity of whisky (45 cases) had already been brought on deck for delivery to them as purchasers, a message was sent to the other four, who had remained on the launch, to come aboard to get the whisky. Just about this time Jones disclosed his badge, alleging that they were officers of the law, and told the Japanese with whom they had negotiated that they were under arrest. They indicated their purpose to resist, and Jones drew a pistol and told one of them that he did not wish to kill him, but to lock him up. Some one commenced shooting, and the wireless operator of the ship and a fireman, both Japanese, were handcuffed. Shortly thereafter the lights on the ship were turned off by an engineer, member of the crew, and there was a general affray in the course of which a number of shots were fired, one of the Japanese crew was killed, one mortally wounded, and two of the accused wounded. There are many other details of the affray and other antecedent and succeeding events which we think it unnecessary to recite.

Before this trial they had been tried for the murder of Shagji Miyau, who was killed at the time, and acquitted. Then followed this trial and their conviction for the murder of Hadie Sasaki, who was mortally wounded in the back during the affray and died about 4 o'clock the next morning.

There was contradiction by the defendants of the incriminating evidence of Moore, upon whose testimony their conviction chiefly rests, but there was also much corroboration, both in the testimony introduced in behalf of the accused as well as in that of the commonwealth. As the jury credited the evidence for the commonwealth, in which they were fully justified, it is clear that the judgment should be affirmed, unless there was some prejudicial error in the procedure.

The precise question emphasized in the argument has never been raised, we believe, in this jurisdiction, but it has been much discussed elsewhere. The accused filed a paper, designated as a special plea of res judicata. It tenders no issue of fact, but prays that the court exclude from the consideration of the jury all evidence purporting to set up or charge them on the occasion in question with robbery or attempted robbery, and a conspiracy to commit the same, for the reason that on the previous trial for the murder of Shagji Miyau, upon substantially the same evidence, the defendants and each of them were duly acquitted, and that as a result of that previous trial each and every issue involved and submitted to the jury, including the issue of robbery, or attempt to commit the same, or conspiracy to commit the same, was decided in favor of the defendants; and they allege that as the result of that previ-ous trial the commonwealth and the parties to the said indictment were fully and completely foreclosed and estopped from setting up or introducing evidence of said robbery or attempt to commit the same and conspiracy to commit the same, and other matters bearing upon said robbery and attempt to commit the same and conspiracy to commit the same, and concluded with an offer to verify. This plea was rejected.

It is seen that this alleged plea is merely a prayer to exclude certain testimony which had been introduced at their previous trial for a different homicide, and this before the testimony on this trial had been offered. Inasmuch, however, as this testimony was subsequently offered and a motion then made to exclude it, which was overruled, we will pass upon the question as properly raised.

It is observed that in substance it is an effort to secure the benefit of the immunity clause of the Constitution prohibiting persons accused of crime from being placed twice in jeopardy for the same offense, though it is admitted that, inasmuch as this indictment for the murder of Hadie Sasaki charges a different crime from the one for which they had been already acquitted, neither the defense by plea of former acquittal nor immunity because previously in jeopardy could be successfully invoked. No indirection is necessary when such immunity exists, for it may be confidently and successfully invoked.

That the proper method of raising the question of former jeopardy is by special plea of former acquittal or conviction seems to be well settled. 2 Whart. Cr. Ev. (10th Ed.) § 592, and cases cited.

In Justice v. Commonwealth, 81 Va. 217, it is said:

"But the doctrine of estoppel, strictly speaking, is not applicable to the commonwealth in a criminal prosecution. The nearest approach to it is the doctrine, founded on the maxim of the common law, that no one shall be twice put in jeopardy for the same offense. 'This doctrine, ' says Bigelow, 'has a close relation to the subject of estoppel by former judgment, and may be considered as the criminal law counterpart of the same doctrine. But the doctrine rests upon technical notions of jeopardy, and not upon the principle of res judicata, ' etc. Bigelow on Estoppel (3d Ed.) 47."

While unprepared to say that no case can possibly arise in which the doctrine of estoppel or res judicata can be invoked against the commonwealth, we are clear in our view that it cannot be invoked in this case.

In Vaughan v. Commonwealth, 2 Va. Cas. (4 Va.) 273, it is held that, where one has been indicted for shooting one person and acquitted, and then indicted for shooting another, the plea of autrefois acquit will not be supported, although the same act of shooting is charged in each indictment, for the jury who tried the first indictment might have acquitted the prisoner on several grounds which would not affect the second trial.

In Smith v Commonwealth, 7 Grat. (48 Va.) 593, it is held that a conviction for advising, enticing, and persuading one slave to abscond is not a bar to prosecution for advising, etc., another slave to abscond, although the act of advising, etc., charged occurred as to both slaves at the same time and by the same words and acts.

In McCoy v. State, 46 Ark. 141, where there was a conflict in which a man was killed and his wife wounded in one and the same transaction, the...